CASE NO.

: Writ Petition (civil) 317 of 1993

PETITIONER: T.M.A. PAI FOUNDATION AND ORS. ETC.

RESPONDENT: STATE OF KARNATAKA AND ORS. ETC.

DATE OF JUDGMENT: 10/05/1995

BENCH: KULDIP SINGH & S.C. AGRAWAL & B.P. JEEVAN REDDY

JUDGMENT: JUDGMENT

1995 Supp(1) SCR 283

The Judgment was delivered by B. P. JEEVAN REDDY, J.

B. P. JEEVAN REDDY, J. -

The present proceedings for contempt of this Court were initiated suo motu when it was brought to our notice that the Government of Maharashtra has framed rules regarding admission to medical, dental and engineering courses reserving fifteen per cent seats for NRIs/Foreign students contrary to the

orders of this Court dated 5-4-1994 and 13-5-1994. In response to the notice, a affidavit sworn to by Shri Arvind Choudhary, Under Secretary, Medical Education and Drugs Department, Government of Maharashtra was filed stating that the said rules were framed after obtaining the opinion of the Law and Judiciary Department to the effect that the number of seats permitted to be filled by NRIs for the academic year 1994-95 under the orders of this Court is fifteen per cent. On the basis of the said opinion, it was stated, the earlier orders fixing the said quota at ten per cent were revised to fifteen per cent. After perusing the said affidavit, this court expressed a tentative view that there has been "an obvious attempt at overreaching the orders of this Court" and accordingly, issued notice to the Secretary/Officer concerned in the Law and Judiciary Department who has tendered the said opinion to show cause why contempt proceedings be not initiated against him. The Principle Law Secretary to the Government of Maharashtra was directed to identify the Officer/Secretary with reference to record - vide orders dated 24-10-1994

2. Pursuant to the orders dated 24-10-1994, Shri Prabhakar Shivaji Mane, Secretary to the Government, Law and Judiciary Department filed an affidavit stating the following fact : he was appointed as a Civil Judge in the year 1978 and promoted as a District Judge in 1988. For two years, he worked as Additional Registrar, Bombay High Court. In May 1992, he was deputed to the Government of Maharashtra and appointed as Secretary in the Law and Judiciary Department. By the time of the said posting, he had "very little experience of dealing opinion work". On 7-6-1994, he received a memo from the Under Secretary, MW & DD raising doubts as to the quota for NRIs for the academic year 1994-95. He examined the matter with reference to the

orders passed by this Court and came to the conclusion that the permitted quota for NRIs is fifteen per cent for the academic year 1994-95. Shri Mane stated

"I admit that there was some confusion in my mind as a result of reading the order of 13-5-1994 with the previous orders of this Hon'ble Court dated 5-4-1994. I respectfully submit that this was a bona fide error on my part ..... I now realise that I should have been more careful in this matter but there was no intention on my part to overreach and flout the orders of this Hon'ble Court or to give any wrong advice to the Department."

Shri Mane enclosed with his affidavit the memo received by him from the Medical Education Department. The memo states that reading the orders of this Court dated 5-4-1994 with the order dated 13-4-1994

"it gives an impression that the NRI quota has been continued to be fifteen per cent"

. The law and Judiciary Department was asked to give its opinion on the issue. The memo is dated 7-6-1994. It is signed by Shri Arvind Choudhary, Under Secretary and Capt. Shaikh, Deputy Secretary. On the very next day, i.e., 8-6-1994, Shri Mane expressed his opinion in the following words :

"In view of the above interpretation, it is clear that the view of ME & DD that the NRI quota is 15% in respect of institutions other than minority institutions and in cases of minority institutions it is

raised to 10% is correct."

The reasoning in support of the said opinion is not only involved and confusing but is now admitted to be erroneous. We, therefore, think it unnecessary to refer to or set out the said reasoning

3. After perusing the affidavit of Shri Mane, this Court issued notices to Shri Arvind Choudhary, Capt. Shaikh and Shri B. G. More (Principal Secretary to Law and Judiciary Department) to show cause why contempt proceedings be not initiated against them. Capt. Shaikh stated in his affidavit that on 2-6-1994 the Government had issued orders fixing the NRI quota at ten per cent as per the orders of this Court dated 5-4-1994 and 13-4-1994. Later, however, the Maharashtra Association of Professional Educational Institutions, said to be a representative body of private colleges for medical and engineering courses, submitted a representation on 6-6-1994 (addressed to the Chief Minister of Maharashtra) contending that the NRI quota, according to the orders of this Court, is fifteen per cent. On receipt of the said representation, Officers of the Medical Education Department also entertained a doubt regarding the interpretation given to the orders of this Court and hence addressed the memo dated 7-6-1994 (signed by Shri Arvind Choudhary and himself) to the Law Department. On receipt of the opinion of the Law Department, revised orders were issued on 9-6-1994 raising the NRI quota to fifteen per cent

4. Shri Bhimrao Ganpatrao More, principal Secretary and Remembrancer of Legal Affairs to the Government of Maharashtra, Law and Judiciary Department has also filed a separate affidavit stating that since the

creation of the post of Secretary and Senior Legal Advisor to Government, the opinion work is being looked after mainly by the said officer and that at the relevant time Shri mane was holding the said post. He stated that after recording his opinion Shri Mane was holding the said post. He stated that after recording his opinion Shri Mane referred the file to him for confirmation of his opinion and that he perused the file including the said opinion and agreed with the same. Accordingly, he endorsed "I agree" on the said opinion. He submitted that he now realises that his understanding of this Court's orders was wrong but, he says, the error was bona fide. Shri Arvind Choudhary has filed an additional affidavit practically on the same lines as his previous affidavit

5. With a view to acquaint ourselves with all the relevant facts, we called upon the learned counsel for the State of Maharashtra to produce the files relevant to the order dated 9-6-1994. The files were accordingly produced, on perusing which a notice was issued to Mrs Joyce Sankaran, Secretary in the Medical Education Department, Government of Maharashtra to show cause why she should not be punished for contempt of this Court for violating the order dated 13-5-1994. Pursuant thereto, Smt. Joyce Sankaran has filed an affidavit, which we have perused. We also heard Shri Andhyarujina afresh on her behalf. In her affidavit, she has stated inter alia,

"it was with my knowledge and consent that this action of seeking the opinion of Law and Judiciary Department in this matter was taken"

. She has also stated - and the file shows - that the corrigendum was issued on 9-6-1994 with her knowledge and consent

6. The order dated 5-4-1994 made by a seven-Judge Bench of this Court was confined to Minority Educational Institutions. The order states so at more than one place. Under this order, it was directed that

"insofar as Non-Resident Indians and foreign students are concerned, the permissible limit would be only 5 per cent of the total intake for a given year as per the direction contained in para 6 of the order dated 14-5-1993 as modified by order dated 18-8-1993 .........."

7. The order dated 13-5-1994 deals with two aspects, viz., (a) fee structure in medical and dental colleges and (b) the NRI quota in these colleges. So far as NRI quota is concerned, the relevant paragraph reads as follows : (SCC p. 729, para 3)

"So far as the NRI quota is concerned, we fixed the same as 15 per cent last year. We fixed the NRI quota in respect of minority institutions as 5 per cent. Although the NRI quota should not, normally, be more than 5 per cent, but keeping in view the reduction in the fee structure, we fix the same as 10 per cent (of the total seats) for this year. We further make it clear that in case any seat in the NRI quota remains unfilled, the same can be filled by the Management at its discretion."

8. One fails to understand how the said direction in the order dated 13-5-1994 could be misunderstood by anyone. There was no question of any doubt arising as to its meaning nor did it call for any interpretation. The

order clearly states these facts : for the previous year, the NRI quota was fixed at fifteen per cent; for the minority institutions, it was five per cent; though NRI quota should not normally exceed more than five per cent but since this Court has reduced the fee structure, the said quota is fixed "as 10 per cent (of the total seats) for the year". Even if, this order is read with the direction (extracted hereinabove) in the order dated 5-4-1994, it is difficult to see how it leads to the conclusion that the said quota is fifteen per cent. Firstly, as stated above, the order dated 5-4-1994 was confined to Minority Educational Institutions and it permitted only five per cent which fact was referred to specifically in the order dated 13-5-1994. Having further noted the fact that the NRI quota fixed for the previous year was fifteen per cent (and for MEIs only five per cent) the order dated 13-5-1994 stated that though NRI quota should not normally be more than five per cent, yet in view of the reduced fee structure provided in the order, the NRI quota is being fixed at ten per cent. It is thus evident that a doubt was sought to be created where there was no room for any doubt. It is equally clear that the doubt was inspired by the Association of Private Medical and Dental Colleges. The sequence of events speaks for itself. On 2-6-1994, the Government had issued orders, correctly fixing the NRI quota at ten per cent on the basis of the order of this Court dated 13-5-1994; on 6-6-1994, however, the Association of Private Medical Colleges makes a representation that according to the orders of this Court, it should be fifteen per cent; immediately, the Medical Education Department changes its opinion; now it says :

"[H] own ever, after reading the Supreme Court judgment dated 5-4-1994 with judgment dated 13-5-1994, it gives an impression that the NRI

quota has been continued to be fifteen per cent."

But in case of Minority Educational Institutions it is raised to ten per cent; on the very next day, i.e., 7-6-1994, the Medical Education Department sends a memo to the Law Department seeking its opinion on the issue; on the immediately following day, i.e., 8-6-1994 both Shri Mane and Shri More express their opinion and on the following day, i.e. 9-6-1994 a corrigendum is issued by the Government of Maharashtra to the earlier orders dated 2-6-1994 raising the quota from ten per cent to fifteen per cent. The extraordinary speed with which the representation of the Association of Private Medical Colleges was processed should stand as a shining example of the speed with which the Government works. How one wishes, representations of ordinary mortals are also dealt with with equal despatch. Be that as it may, by the time the matter was brought to the notice of this Court, admissions were made and completed in accordance with the said revised quota and we were confronted with a fait accompli. The students so admitted in excess of ten per cent also came before us (pursuant to the notices issued by us) pleading that they are innocent parties in the entire transaction and that they have bond fide obtained admission after paying substantial amounts by way of consideration for obtaining admission it is common knowledge that each seat under this quota is sold for huge sums, not all accounted for and not all in Indian currency

9. On a consideration of all the relevant facts and circumstances, we find no room for a bona fide error on the part of the officers concerned, viz., Shri Arvind Choudhary, Under Secretary, Capt. Shaikh, Deputy Secretary, Medical Education Department, Smt Joyce Sankaran, Secretary to the Medical

Education Department and Shri Mane and Shri More, Secretary and Principal Secretary respectively of Law Department. The Government, which means the Medical Education Department in this case, had issued orders on 2-6-1994 correctly stating that the quota for NRIs in the medical and dental colleges is ten per cent. But when the Association of Private medical Colleges made a representation on 6-6-1994, things started moving. The very officers who had issued orders only four days ago (2-6-1994) fixing NRI quota at ten per cent on the basis of the orders of this Court dated 13-5-1994, now read that very order - in particular, the paragraph quoted hereinabove - as providing for fifteen per cent. The write to the Law Department for their opinion as to the correctness of their revised reading of this Court's orders and it is promptly affirmed by the Law Department. In the course of three days, the earlier decision was revised on an ex facie faulty - and we are inclined to say, deliberately distorted interpretation of the orders of this Court and a corrigendum issued as desired by the Association of Private Medical Colleges. We are particularly pained by the role played by Shri Mane and Shri More in this matter. They are judicial officers of long standing. They have decades of judicial experience behind them. It is difficult to believe that they could make any mistake in understanding the orders of this Court which are worded in simple and unambiguous language. The least they could have done, was to advise the Government to move this Court for a clarification. It is clear that these two officers of the Law Department lent themselves as willing tools for achieving the illegitimate design of the Association of Private colleges actively abetted by the Medical Education Department. If the said two judicial officers of such long standing cannot properly understand the short and clear order made by this Court on 13-5-1994, it is difficult to

believe how they had been understanding the judgments of this Court and of the High Courts while performing their judicial duties all these years. We are, therefore, inclined to reject their explanations as also the explanations offered by Shri Arvind Choudhary, Capt. Shaikh and Smt Joyce Sankaran. So far as Smt Joyce Sankaran is concerned, we were told by Shri Andhyarujina that a copy of the representation of the Association was filed before her and that she had sent it down to Shri Arvind Choudhary. She has herself admitted that whatever Shri Choudhary and Capt. Sheikh did was done with her knowledge and consent. Interestingly, Smt Joyce Sankaran has also offered an explanation for the unusual speed with which the representation of the Association was processed. She has stated :

"[A]s the printing of admission forms was in progress and the admission had to be started, the matter was considered urgent and on 8-6-1994, Shri P. S. Mane ....... was requested to give his opinion on this issue early."

This reason for urgency is not mentioned in the letter dated 7/8-6-1994 nor has it been mentioned earlier by any other officer. The letter addressed to Law Department merely stated at the end :

"Law and Judiciary Department is requested to give its opinion on this issue at the earliest"

- an expression that did not convey the extraordinary urgency which was indeed exhibited in processing it. Be that as it may, we are of the opinion that Smt Joyce Sankaran, being the Head of the Department and a senior and

experienced officer, ought to have scotched the exercise at the very inception. Instead of doing that she, on her own statement, was party to the revised - and in our opinion, distorted - reading and understanding of this Court's order and also responsible for issuing the corrigendum. It cannot be forgotten that it was she and the Deputy and Under Secretaries of her Department that entertained the 'impression' that the NRI quota has been continued at fifteen per cent (as against their earlier presumption that it was ten per cent) and asked for the opinion of the Law Department

10. All the five officers, viz., Shri Arvind Choudhary, Capt. Shaikh, Smt. Joyce Sankaran, Shri P. S. Mane and Shri B. G. More, have no doubt tendered unqualified apology to this Court but in the facts and circumstances stated above, it would be a travesty of justice to accept the same. They are senior and experienced officers and must be presumed to know that under the constitutional scheme obtaining in this country, orders of this Court have to be obeyed implicitly and that orders of the Apex Court - for that matter, any Court - should not be trifled with. We have found hereinabove that they have acted deliberately to subvert the orders of this Court, evidently at the instance of the Association of Private Medical Colleges. It is equally necessary to erase an impression which appears to be gaining ground that the 'mantra' of unconditional apology is a complete answer to violations and infractions of the orders of this Court

11. Accordingly, we reject the "unconditional apology" tendered by the five officers, hold them guilty of contempt of court and do hereby censure their conduct. A copy of this order shall form part of the Annual Confidential Reports/Record of Service of each of the said officers

12. The contempt matter is disposed of accordingly